Volume 9 — Sergeant & Rawle's Pennsylvania Reports

IN ERROR. On a writ of error to .Allegheny county, it appeared from the record that the plaintiif below, the Bank of Pennsylvania, levied a fieri on thereal property of the defendant, and had itcondemn- ed. A venditioni exponas followed in due course, to which the sheriff returned, “ Proceedings on this writ abandoned by order of the plaintiff’s attorney.” On the same day a ca. sa. was issued, on which the defendant was arrested.

- IN ERROR. The defendant in error brought an action in the Court of Common’ Pleas of Venango county, against the plaintiff in error, in which he declared for money had and received, &c. The defendant pleaded non assumpsit and payment, and non assumpsit infra sex annos ; to which the plaintiff replied that he did assume within six years ; whereupon issue was joined..

<p>When a justice of the peace has jurisdiction of a case, his judgment, though erroneous, is binding on the parties until reversed on a certiorari or appeal</p>

<p>Hhe limitation of six; months as to suits against justices of the peace,.contained in the 7th section of the act of 21st March, 1772, maybe taken advantage of-by tliq justice, though not specially pleaded.</p> <p>But in a suit against a justice, for not certifying a recognizance, entered into h}' the plaintiff in consequence of which the plaintiff's appeal from the judgment Qf such justice was dismissed, evidence is admissible that the plaintiff tendered bail to the justice, more than six months before the suit against the justice, because, though this was before the six months, the neglect to certify the recognizance may nave been within that period.</p>

IN ERRORS This was a writ of Error to the Common Pleas of Allegheny county. Held: and an appraisement of-the same. On the 2d of July, 1821, M. M. & I. Swan issued a wire facias to August term, 1821, against Robert Patterson. The praecipe for the sci.fa. wáS in the following words: 6t M. M. & I. Swan, Issue sci.fa. on recognizance of special v. > bail in No. 400, January term, 1820.

<p>Whíere a chose in action is equitably assigned, and suit is afterwards brought by . the assignee, in the name of the assignor, for his use, the assignor, if he have no interest, is a competent witness for the plaintiff.</p>

IN ERROR. Writ of error'to Fayetle county-, in an action on the case, brought by the defendant in error against the plaintiffs in error. The declaration contained two counts, on which, at the trialy a general verdict was taken for the plaintiff below, and judgment entered thereon. On the removal of the record to this court, several errors were assigned, only one of which is now material, since this court, in delivering its opinion, noticed no other.

<p>Special bail has until thp quarto die post to surrender the princ'pal.</p> <p>If the principal be in court within the four days ready to be s '^rendered, and the .court, on a rule to show cause why he should not be surrenlered, hold the matter under advisement, withoutnommitting the principal, he may be surrendered when.the'court make the rule absolute, although the four days have expired.</p> <p>Q.TJEHY — Whether an, order for an exoneretur be the subject of a writ of error ?</p>

<p>In an action of ejectment to which the general issue is pleaded, it must appear, that the defendant dispossessed the plaintiff, or was in the actual possession of the land, or the plaintiff will be defeated.</p> <p>The return of the sheriff under the act of assembly of April 1.3th, 1807, is only pri-ma facie evidence of the possession of any defendant, whether his name be in the .writ of ejectment, orbe added by the sheriff; and such defendant, may rebut it, by showing that he' was not in posséssion.</p> <p>The act of assembly of March 11th, 1784, authorising John Sumral to establish a ferry over the Youghiogany river, did not vest a right in him to land upon the landing of any persons without their consent.</p> <p>A possession to prevent a recovery, or vest a right, under the statute of limitations, ' must be actual, continued, adverse, and exclusive. An easement claimed out of the land of another, can never be the subject of such limitation, for it is not constant, exclusive, and adverse ; but a continued, exclusive possession and enjoyment, with the knowledge and acquiescence of the owner of the inheritance, for twenty-one years, would be evidence from which a jury might presume a right, by grant or otherwise, to such easement.</p>

<p>The description of a road prayed for by petition as beginning at a dwelling house,which is known, and ending at a public road, is sufficiently certain.</p> <p>A road from the plantation or dwelling house of a petitioner, to or from the public highway, or any place of public resort, as déseribed in the 17th section of the act of 6th April, 1802, isa private road, to be laid out, &c. in the manner therein prescribed, and there is no authority in aiiy court of Quarter Sessions, to have it laid out as a public road.</p>

<p>A survey is not evidence without showing an authority to make it, or proving that such authority existed and was afterwards lost..</p> <p>Possession upwards of 30 years, under a survey found in the hand writing of an assistant deputy survey or, indorsed “copied for return,” with a memorandum by him, that there was an authority to make it, the lines of. which survey are marked on the ground, is not a sufficient foundation to presume a warrant or authority.</p>

IN ERROR. Error to the Court of Common Pleas- of the county of Cumberland. Covenant in the court below, bjr Barnhart Rinehart against Joseph Knox.

IN ERROR. Error to the Court of Common Pleas of Huntingdon county, in ah ejectment brought by William Ooldsborough against William Patton, and Richard Smith, Charles Smith, and Benjamin R. Morgan, executors of Dr. William Smith, deceased,* tried before a special court held by Reed, president, and the associate Justices of the Court of Common Pleas of Huntingdon county, under the act of assembly providing for holding special courts.

IN ERROR; Error to the Court of Cómmon Pleas of Cumberland county. Debt, to recover the sum óf 80 dollars, money lent, brought by Jacob Lehn against John Lehn, administrator of Jonathan Lehn, deceased.

<p>The 77th section of the act for the improvement of the state, passed the 26th March, 1820, embraces those cases only, in which, by the other sections, there is no special appropriation of the money subscribed by the state, to future expenditures.</p> <p>In such appropriations to future expenditures, the state treasurer is bound to pay .the money subscribed, to the company: and it is no objection to such payment, that a contractor objects to it, who claims for Work done before the passing of the act.</p>

IN ERROR. This was a writ ’of error' to the Court of Common Pleas of Cumberland county, in án action of debt upon an administration bond, brought in the name of the Commonwealth against Isaiah Carl, George Snyder, Christian Hickendom, and Samuel Ickesi.

<p>Two defendants, sued jointly, may set off a debt due by the plaintiff to one of them. ' .</p> <p>On evidence of set off offered by,the defendants, whether or not the debt, on which suit is brought, is equitably o.wned by the defendant’s debitor, is a question for the jury to decide; and it is error for the court to decide it, and reiect the set off. '</p>

<p>appeal.</p> <p>This was an appeal by John Keyzey, junior, who was executor of the last will and testament of John Keyzey, senior, deceased, from a decree of the Orphans’ Court of Franklin county, on a settlement of his administration accounts.</p> <p>The testator, John Keysey, senior, died seised of a tract of un-patented land, ofabout200 acres, which was originally part of a larger tract of 400 acres, for which, in the year 1755, a warrant had issued to Alexander Lowry. J. Keyzey, senior, by his will, devised this tract of land to his son J. Keyzey, junior, after the decease of his widow, and appointed him one of his executors. In his-account as executor, J. Keyzey, junior, charged .the estate with the purchase money of this tract of land, and the fees for patenting the same, which he had paid at the land office, on taking out a patent in the year 1811,-amounting to 267 dollars and 72 cents, and - with interest from the time of payment. But the Orphans’ Court struck these items from the account J being of opinion, that the purchase money was a charge on the land, and not a personal claim on the testator.</p> <p>The purchase money due to the commonwealth was a personal debt oh the part of the testator, and as such, the personal estate must first be applied in discharge of it. The warrant is a contract, implying an obligation, on the side of the warrantee1, to pay the value at which the land is sold : and although there exists a lien on the land, that does not destroy the personal remedy, if the commonwealth choose to adopt it. The lien resembles a mortgage, where it is well established, that the devisee is entitled to call on the personal estate, to have the mortgage cleared off. The general rule is, that the personal estate is first to be applied for the payment of debts, .unless otherwise directed by the testator Walker v. Jackson, 2 Jitk. 626. If land be sold and the vendee die, the executor must pay the vendor out of the personalassets, whatever purchase money may remain unpaid. Coppin v. Coppin, 2 P. Wms. 291. If a man devise a real estate liable to the payment of debts, giv. ing it over to another subject to those.debts, or giving what remains after payment of those debts, the personal estate shall be'first applied. Bridgeman v. Dove, 3 Aik. 201. The acts of' the , legislature have treated the purchase money due on the unpatented lands, as debts, for which they might call on the holder in the mode they deemed expedient. By the act of 9th Jlpril, 1781, the arrears were to be paid up in four annual instalments. Sect. 6. Purd. Pig. 370. By the act of 16th September, 1785, the holder might give bond for paying in five equal yearly instalments.</p> <p>admitted that in general the personal estate is the fund for payment of debts, though the land be liable for those debts; but they contended that this was no debt from the testator to the commonwealth. He had made no contract. The warrant contains none, and is, indeed, a mere grant, if the war-rantee choose to have the land surveyed: if not, he may abandon the warrant, and avoid all liability. This is recognised by the warrant itself, which provides, that unless the terms are complied with, the grant shall be void. There is no instance of any action brought by the commonwealth, or proprietaries, for the purchase money. The warrants and locations were often in the names of persons who had no knowlege of them, and who were not to have the land. The act of 9th Jlpril, 1781, shows, that the commonwealth looked to the land only; for in case of non-payment, the lands were to be sold. So by the last act of March 22,d, 1820j the députy surveyor was to return the land, and the attorney general to institute a suit i'n nature of a scire facias on mortgage; Suppose this estate had passed through several hands, before it came to the testator, who is to pay the purchase money due on the warrant ? ' In equity, the personal estate is not applied in exoneration of the land from a mortgage not given by the testator, because it was not a debt due by the testator. Toll, on,Ex. 419. Evelyn v. Evelyn. 2 P. Wms. 664.</p>

<p>If a bill of exceptions state that the court permitted evidence to be given, and then exception was taken, on error brought, it cannot be alleged that no such evidence was afterwards given. If the evidence had been withdrawn, that should be stated in the bill of exceptions.</p> <p>The declarations of a vendor, after a sale, who is not a party to the suit, are not evidence, especially to contradict a written instrument.</p> <p>Payments by the obligor to the obligee, without notice of any assignment of the bond, are good.</p>

<p>"Where the writ states the plaintiff to be executor of A. who was a' surviving1 obli-gee with B. it is no variance, though tlie statement describe the bond as given to A. and B. éxecutors of C. and the bond is in that form.</p> <p>A deed for land accepted by the vendee after articles of agreement, though it differ in some respects from the articles, is to be considered as expressing the ultimate intent of the parties, where there is no misconception of the deed by either party.</p>

IN ERROR. Error to the Court of Common Pleas of Cumberland county. This was another action of debt, brought by the saíne persons who were plaintiffs in the foregoing suit, against the same defendants, upon another bond forthe purchase money, and a. verdict and judgment were rendered for the plaintiffs below.

IN ERROR. Error to the Court of Common Pleas of Lehigh county. Case, by Christian Brobst, the plaintiff below, against William Shaffer, the defendant below, in which a summons issued to January term., 1820, and the sheriff returned “summoned.” It appeared by the record, that on the 6th September, 1820, a rule was entered to declare by the 1st day of next term, or non pros.

IN ERROR. This was a writ of error to the District Court for the city and county of Philadelphia, in an ejectment brought by William Wright, the plaintiff below, against John Thomas, for a house and lot in the county of Philadelphia, in which a verdict and judgment were rendered for the plaintiff. Two bills of exceptions were taken by the defendant to the admission of evidence, and a third to the charge of the court.

<p>Under the domestic attachment act of 4th December, 1807, three trustees must be appointed and must qualify, before any can- act: but if one afterwards die, the survivors may sue.as trustees. .</p> <p>In an action of trespass or trover, by two of the-trustees, the court, after verdict, will presume, that all three were appointed and qualified, and that one is since dead.</p> <p>Where a number of persons are entrusted with powers of a general nature, and all are assembled, a majority may act, if regular notice has been given. But where a certain number Of trustees are by act of assembly to be appointed andswoi-n, all must be appointed and sworn, before a majority can act, though the law vests in the majority all the powers of the whole.</p> <p>In trespass 'for mesne profits, the defendant is concluded by the recovery against ' him in the ejectment, as to the title of the plaintiff.</p> <p>Trespass for mesne profits lies against a corporation. '</p> <p>The guardians of the poor oí the city and districts are liable in trespass for mesne profits, and in trover.</p>

<p>On the 23d of July, 1819, A., who was going out as supercargo of the ship America, on a voyage from JVerw York to the Isle of France, and Calcutta, and back, by * a writing, reciting that he was indebted to B. in 2500 dollars, engaged to ship and consign to B. goods to that amount, arising from his outward commissions, and in case of death, or any accident happening to him, assigned his commissions on the above voyage, and the proceedsthereofi to B., and by another writing, of the' same date, authorised B. to make insurance for 2500 dollars on his commissions out, and the proceeds thereof out and home. On the 10th July, A. caused insurance to be made in JVew York, for 4000 dollars, for himself on commissions out and home, and delivered the policy to C. On the 15th August, B. had insurance made by the defendants, in Philadelphia, for 2500 dollars, on commissions of A., valued at the sum insured out, and on the proceeds of said commissions, as ' interest might appear, homeward, with the usual clause as to a prior insurance. On the voyage home, the ship was wrecked, and A. drowned ; but B. received an invoice and bill of lading of goods consigned to him on account of A. by the ship, amounting to 1500 dollars, some of the goods were saved, and claimed and received by the JVem York underwriters, who paid part of their policy on a com- ■ promise with C. Held,</p> <p>, 1. That this was not a case of double insurance, that at Neio York, and that at Philadelphia being on account, and for the benefit of different persons.</p> <p>2. The plaintiff had an insurable interest. •</p> <p>3. He was not bound,to disclose to the defendant the particular nature of his interest. ■ "</p>

<p>Taxes due for seated lands are not a lien on real estate, but only a personal charge against the owner or occupant.</p>

<p>A valued policy of insurance was made of supposed profits, on a cargo of goods, on a voyage from Canton to Philadelphia, free from average, and without benefit of salvage-. The ship sailed from Canton with a carg’o, but in consequence of bad weather, put into the Isle of France for repairs; part of the cargo was so much damaged, that it was thrown overboard; part being also damaged, was sold, and the proceeds reinvested, and these, with the sound part, arrived at Philadelphia, where it’was found that pait of those considered sound, were damaged.. The sound teas Were sold at a very considerable profit, but on the whole cargo there wa's no profit: and there was a loss of more than fifty per cent-, on the whole goods shipped. Held, that the underwriter was discharged.</p>

<p>If creditors release, under an assignment by the debtor in trust to pay their respec- . ,tive demands in full, the surplus to go to the debtor, and the fund prove sufficient to pay the whole debt and part of the interest up do the payment of the last dividend, they are entitled to receive such interest. '</p>

<p>IN ERROR.</p> <p>ON a writ of error to the Court of Common Pleas of the County of Philadelphia, in assumpsit; brought by Joseph Levy against Richard Peters, and Betsy K. Sprogell, executors of David Sprogell deceased, a bill of exceptions was returned, which stated, that on the. trial, the plaintiff gave in evidence a check for 400 dollars, drawn by the testator on the Mechanics’ Bank, in favour of the plaintiff, dated the 12th Jime, 1815, on.which he claimed as due, a balance of 50 dollars, with interest from the date thereof, giving credit for the 350 dollars, which he said had been paid by the defendants testator in his life time. The defendants insisted, that the check had been wholly paid, and had been cancelled by the said testator, or some person who had it; and gave evidence to prove'that it had been cancelled. The defendants then insisted, that the said evidence so exhibited by them, together with the great length of time that had elapsed sinee the date of the check, were sufficient to entitle the defendants to the verdict of the jury, and to go acquitted and discharged. And the plaintiff then and there insisted, that the said evidence, as given, was insufficient to entitle the defendants to the verdict of the Jury, but that'the plaintiff was entitled to recover.</p> <p>The President of the court delivered the’ opinion of the court to the jury as follows, to wit: ‘‘That the jury must judge as a matter of factj whether’ the check had been cancelled, and of the other questions of fact arising in the cause; but that the plaintiff could not recover, because he had not proved a demand upon the bank on which' the said check -was drawn. That there was no evidence of the payment of 350 dollars in part of the amount; and if there had been, it would' .not have altered the case in this respect; a check on the bank being in the nature of an inland bill of exchange, and'subject to all the rules which regulate'the negotiation of such an instrument. ” The jury gavé their verdict for the defendants. .Whereupon the plaintiff excepted to the opinion of the said court.</p> <p>now contended, that the court below had charged the jury 'erroneously. They informed the jury, that a demand on the bank was indispensable, to enable the plaintiff to recover; whereas payment of part by the drawer, dispenses with the necessity of making á demand. Either want of funds in the hands of the drawee, a payment in part by the drawer, or an acknowledgment of the debt, and a promise to furnish funds for the balance, dispenses with the necessity of a protest and notice, in the case of a bill of exchange, or promissory note. Read v. Wilkinson, Cir. Court, Whart. Dig: 8T. It would have been fruitless to present the check at bank, in order tó receive 50 dollars upon it. No bank would pay a portion of the amount of a check. The court, however, say, that there was no evidence of the payment of the 350 dollars, in part of the amount. Yet this was a fact admitted on both sides. The plaintiff stated it explicitly, and demanded only the balance: the defendants insisted, that the check had been wholly paid, and relied upon the evidence they had given of that fact, and on the length of time to excuse them. They never pretended to disclaim the credit given by the plaintiff, and the court below ought to have considered that as a fact admitted on both sides. The court go still further, and say, that even part payment would not have altered the case: in which there is manifestly, error, because, even in the' case of bills of exchange, to which the court assimilate the check, the rule is well settled, that part payment dispenses with the proof .of a demand on the drawee: since' it is an admission by the drawer of his liability to pay.</p> <p>The plaintiff gave no evidence but the check. He credited the defendants with 350 dollars: but of this they knew nothing: they were not bound to deny or admit it, nor called upon to do so. Surely the plaintiff, by voluntarily giving a credit for part payment of a cheek, or bill of exchange, cannot exempt himself from the necessity of proving a demand on the drawee, and notice to the drawer. Otherwise, the rules established for the security of parties to commercial instruments, may be easily evaded. But, supposing there was a part payment, we contend, that the court was right in saying, that a demand on the bank was necessary. It is always necessary, unless it be proved, that the drawer had no funds there.</p>

<p>Defendant being arrested on a note, said that he owed the plaintiff the money and intended to have paid him, but that he had taken ungentlemanly steps to get it, and as he had taken these steps he would keep him.out of it as long as he could. Held that this was not such an acknowledgment as would take the case out of the statute of limitations.</p>

<p>It seems the Orphans Court cannot decree the payment of a distributive share, admitted by the administrator to be in his hands, where his accounts are filed in the Register's Office, and not brought into the Orphan’s Court.</p> <p>But where the accounts of an administrator are brought into the Orphan’s Court, it may decree payment of a distributive share to one heii', where there is no dispute between him and the administrator as to the balance due him, though the accounts are, on the application of other heirs, depending- before auditors.</p> <p>The Orphan’s Court cannot decree payment by an administrator, of the costs recovered in a suit brought against him by an heir in a court of common law, to recover his distributive share.</p>

<p>A party, on taking a bond and warrant, agreed, by a separate writing, not to enter up judgment, nor get it done by any body else. He afterwards assigned to another for a valuable consideration, without notice of the agreement, who entered up judgment.</p> <p>.Held, 1st, That the judgment was valid.</p> <p>2d, That the obligee was a good witness to prove, that the assignee had no notice of the agreement.</p>

<p>IN ERROR.</p> <p>This was a writ of error to the District Court for the city and county of Philadelphia, in a suit brought by John Black against Newbery Smith and Nathan Smith, in which that court rendered judgment .for the plantiff below.</p> <p>The first count of the declaration was on a promissory note signed N Smith, drawn by Nathan Smith in favour of and indorsed by ./. Bogers, delivered by Nathan Smith to the plaintiff Black in payment for goods sold. The second and third counts were for goods sold. The defendants pleaded in bar to the first count a former recovery by the plaintiff in a suit on the same note against Nathan Smith, in the District Court, and that the judgment therein remained in full force and effect. In barto the second and third counts they pleaded the same judgment, and that the note was received in discharge of the claim for goods sold. The plaintiff replied to the plea in bar to the first count that when the note was giren, the said Newberry and Nathan were partners in trade, carrying on business under the firm of N Smith, the said Newberry being a dormant partner, and that the same was unknown to the plaintiff till after the judgment recovered against Nathan, and that the note was given for a debt contracted in the purchase of goods delivered by the plaintiff on account of the partnership business. In reply to the plea in bar to the second and third counts, the plaintiffs averred the same facts, and denied that the note was received in discharge of the claim for goods sold. Demurrer and joinder.</p> <p>cited, Williams v. M‘Fall, 3 Serg. &. Rawle, 280. Robertson v. Smith, 18 Johns. 459. Whitman v. Ely, 4 Serg. & Rawle, 454. Penny v. Martin, 4 Johns. Ch. .566. Willing v. Consequa,. 1 Peters, 301. Ross v. Deey, 7 T. R. 361.</p> <p>referred to Sheehy v. Mandeville, 6 Cranch. 253. 5 Taunt. 609. Mildmay’s Case, 6 Co. 40. Bantleon v. Smith, 2 Binn. 148. Gordon v. Correy, 6 Binn. 550. Ingham v. Noke, 1 Wils. 89. Tooher v. Bennet, 3 Caines, 304. 1 Chitty’s Plead. 30. 5 Johns 10. 3 Johns. Cases, 71. Drake v. Mitchell, 3 East. 350. Lang v. Keppele’s executors, 1 Binn. 124. Higgins’s Case, 6 Co. 45. 5 B. & P. 474.</p>

<p>This was a rule to show cause, why the defendant, John Edme) should not be discharged from the custody of John Conard, Esq. marshal of the United States for this district, gran ted. on the affidavit and application of Phillips, the defendant’s attorney.</p> <p>A capias ad respondendum in debt, for 10,000 dollars for penalties, had been issued at the suit of the United States against Ed-me, from the District Court of the United States for this district, in which bail was marked in 15,000 dollars. lie was arrested b.y the marshal on this writ, whilst he was returning from his attendance on a magistrate, before whom he had made a deposition as a witness in the case of Gravelle v. Gouiram, depending in this court, under a rule to take depositions. The marshal was in the justice’s office during the examination of the witness, but did not arrest him until after he had left the office. Edme had given bail to the marshal, and an application was made to the District Court of the United States, to reduce the amount, but that court refused it. He had now left the state.</p> <p>Phillips, in support of the rule, contended, that the privilege of witnesses from arrest eundo, morando, et redeundo was well established, as was also the authority of the court against whom the contempt was committed to discharge them on'motion: and there is no difference whether they attend voluntarily or on subpoena, or whether it is an attendance in court, before an arbitrator, commissioners of bankrupt,-or elsewhere in the course of justice, if it he bona fide. 1 Tidd’s Prac. 174: 5 Bac. Jib. 718. This privilege, which is the privilege of the court, is extended to the case of parties. T. Hurst’s Case, 4 Dali. 387.' Barnes’ Notes 276. The rule to take depositions was regularly entered pursuant to the provisions of the act 20th March, 1810, Purd. Big. 17. There is no prerogative in the United States, in an ordinary action of debt for penalties, that can exempt them from a liability to these principles, nor in the courts of the United States, by which the power of the state courts is in this respect controlled or diminished. On the contrary, the act of congress of the 2d March, 1799, sect. 05. (Ihg. Dig. 233.) expressly provides, that in all cases in which suits or prosecutions shall be commenced for the recovery of duties or pecuniary penalties prescribed by the laws of the United States, the persons against whom process may be issued, shall and may be held to special bail, subject to the rules and regulations which prevail in civil suits in which special bail is required.</p> <p>The application and affidavit were made by the defendants attorney, and at the instance of his bail, after the defendant had gone beyond sea, by which he would, if the discharge were to take place, escape the debt. Besides, anunsuccessful application has been made to the .District Court, and the defendant has thereby admitted the jurisdiction of that court, and waived ¡he ground of privilege. Privilege is lost by the defendant’s pleading. 2 Roll. Mb 275. In Commonwealth v. Hambright, 4 Serg-. & Rawle, 149. this court would not discharge a party on habeas corpus, on the ground of privilege, after a refusal by the court in which the suit was brought to grant his application. The District Court of the United States, in which the suit was brought, was the proper authority to apply to. The Common Pleas cannot discharge a man arrested by process from the King’s Bench. 4 Com. Dig. 476, Privilege, 4. 3.</p> <p>But supposing this court the proper tribunal to act, there has been no contempt of this court. Edme had left the magistrate and was a mere voluntecer, not bound to attend by any subpoena or process; and therefore the privilege of the court is not infringed. There is no instance of a volunteer, not in his own cause, who has been protected. At all events, it is a privilege not available against the United States. It is not available against the crown. 2 Roll. Mb. 274. 5 Bar. Jib. 618. 4 Com. Dig. 475, 17 Vin. 517.. There is the same reason for allowing privilege to the United States as prerogative to the crown, namely, that the public good requires it. In the People v. Gilbert, 18 Johns. 227, it is held, that the government is not bound by an act of limitations, unless named.</p>

<p>It a Seaman ship at the port of Philadelphia, and render himself on board, and after-wards desert at Chester, On the voyage down the river, the surety is liable to the forfeiture imposed by the second section of the act of congress, of the 26th July, 1790.</p>

<p>A sheriff’s sale cannot be objected to by the purchaser merely on the ground of defect of title ; it is binding1 in all cases, except where there is fraud or a misde-scription of the property in some material "respect.</p> <p>A purchaser cannot object to a sheriff’s sale a defect of title of whiclihe had notice: and therefore, when he has bought after notifying publicly at the sale such defect, he cannot 'give evidence thereof in a suit against him for’the purchase money.</p> <p>If the conditions of sale are that the purchaser shall pay in ten days, and the sheriff’s deed shall be delivered at a subsequent day, and if the purchaser refuses to comply, the property will be sold at his risk, and the purchaser gives bond to comply with the conditions of sale, he is liable on the bond without a re-sale.</p> <p>If a'declaration on a bond for the purchase money at sheriff’s sale omit to state a sale it would be bad on demurrer: butif the defendantgo to trial after pleading payment and giving notice of special matter which sets forth the sale, the defect is cured by .the notice.</p> <p>A verdict for the plaintiff in debt finding more than the sum demanded as debt, appearing by calculation to be for the debt and interest^ is informal, but may be moulded into form by considering the surplus as damages, and is not error.</p>

<p>T. F. by bargain and sale, conveyed all the parts and purparts, shares and dividends, of him the said T. F. in the messuages, lots of ground, lands, groun'd rents, tenements, hereditaments, and real estate, which his father lately died seised of, to two trustees, upon trust, that they and the survivor, and the heirs and assigns of the survivor, should, during the natural life of T. F. let the premises, receive the rents and income; and pay the surplus, after deducting ground rents, &c. into the proper hands of T. F. and not to any agent he might appoint, during his natural life, or apply the same to his maintenance: and from and after his decease, in trust for his children, in fee simple, and in case he left no children, then to and for the use of the right heirs of the said T. F. for ever. Provided always, that it should he lawful for T. F., with the consent and approbation of the said trustees, or the survivor of them, or the heirs of the survivor, by any deed under their hands and seals, duly executed and acknowledged, to gfant or convey all or any part of the premises, to such person or persons, and for such uses or.estates, as the said T. F. with such consent and approbation, should direct, limit, or appoint. The real estate of the father was afterwards sold by order of the Orphans’ Court, and with part of the monies paid to the trustees, they purchased a house in the City of Philadelphia, which was conveyed to them on the same trusts: the residue was placed and continued at interest. T. F. made his last will (subscribed by the trustees,) reciting their approbation and consent, testified by their subscriptions to the will, and devised to.his sister M. F. in fee, all the residue of his estate, after payment of debts, and died, leaving the said M. F. and the wives -of the plaintiffs, with other brothers and sisters, his heirs at law.</p> <p>Shortly afterwards, the trustees executed a deed to M. F., in which, as far as the same might be necessary, they gave their consent and approbation t o the said devise, and conveyed the estate to the said M. F. in fee.</p> <p>Held, that the power reserved by T. F. was not well executed, and that the plaintiffs were entitled to a share in the house purchased by the trustees, and in the money at interest.</p>

<p>One devised the residue of his real and personal estate after payment of his debts, to the discretion of his executors to distribute in such manner as they might th.nk proper, and appointed three executors, all of whom- died indebted to the estate without making any distribution. Held, that the Register’s Court might, in its discretion, appoint the son of the surviving executor, who was administrator to his father, administrator own testamento annexe, he being of fair character, and having given good security, and no claim being made by any next of kin, nor opposition by the commonwealth under a claim by escheat, nor by creditors.</p>

APPEAL. Appeal- from the decree of the Court of Common Pleas of the County of Philadelphia. On the- libel of Christiana Robbarts, the appellee, by her next friend James Gibson, against John Robbarts the appellant, and a verdict in favour of the libellant, on several issues joined, the court below, decreed a divorce from bed and board, and alimony.

IN ERROR. Bv the bill of exceptions returned in this case, to the writ of error to the Common Pleas of Northampton County, it appeared that this suit was brought against John Lewis, Jonas Doan and… Held: that under this act, bonds and promissory notes are placed exactly on the same footing, except that bonds and specialties are by the act, to be assigned under hand and seal, and in the presence of two or more credible w itnesses.

IN EEH0E- Error to the District Court for the city and county of Philadelphia, in a suit brought by Daniel B. Cannon, the plaintiff below, against John Gibbs, in which a verdict and judgment were had… Held: that the holder had not used due diligence. In M‘Iver v. Richardson, 1 Maulé & Selw. 557., which was a case of guaranty, notice was given; as it was also in the case of Bank of New York v. Livingston, 2 Johns. Cas. 409.

<p>If the creditor makes his debtor executor, the debt is still assets, so far as respects creditors of the testator, or a residuary legatee.</p> <p>No rule can be established as to the amount of the commissions of executors, that will suit every case. In common cases; five per cent, has been fixed as the standard, by common opinion and understanding; but in the discretion of the couxt, it may exceed, or be less than that.</p> <p>Where the value of the estate was near 100,000 dollars, and the executors had little trouble or hazard, the care of lawsuits being intrusted to counsel, who were paid by the estate, and there being more than sufficient to pay debts, and the receipts by the executors were in large sums of money, the court held three per cent, a reasonable allowance.</p> <p>If an executor make a compromise of a debt, which is intended for the benefit of the estate, and has actually been for its benefit, he ought not to be charged with the debt.</p> <p>Twelve dollars allowed to executors, as a fee paid to an attorney for stating and preparing their accounts, but nothing beyond that for advice as to the mode of stating it.</p>

<p>In an action by the vendor for non performance by the vendee of a contract to purchase real estate, the vendor in making out his title, cannot give in evidence, a Sheriff's deed, without showing the judgment and execution.</p> <p>An exemplification of proceedings in the Orphans’ Court, to value and make partition of real estate is not evidence, unless the whole record is exemplified. .</p> <p>If before the day for accepting the deed under a contract of sale, the vendee deny that he had made the purchase, and makes no other objection, that dispenses with the necessity of the tender of a deed by the vendor on the day.</p> <p>Hut though before the day, the vendee deny that he had made the purchase, yet if the land is subject to incumbrances not declared at the time of the sale, the vendor must satisfy the jury beyond a doubt, that he could and would have removed the incumbrances, or he is not entitled to damages.</p> <p>If an agent, employed to bid for the vendor at a public sale at a limited price, exceed his authority, he is considered as making the purchase on his own account, and may be sued as a purchaser.</p> <p>A declaration in assumpsit by a vendor on a contract of sale of real estate, ought to state a positive assumption by the defendant, and if the vendor contracted to make a good title, that he was seised ot a good estate in fee simple:</p> <p>It seems a general averment, that the plaintiff was ready and willing, and offered to peiform his part of the contract, is good after verdict.</p>

<p>APPEAL</p> <p>This was an appeal by Samuel Walker, William Blakey and Thomas Hutchinson, executors of Joseph Walker, deceased, from the decree of the Orphans’ Court of Philadelphia, County, on the settlement of their accounts. The only dispute was respecting the amount of the commissions they were entitled to. The will of Joseph Walker was proved on the 3d May, 1813. On the 24th December, 1813, the first account of the executors was filed, in which they charged a commission of five per cent, on 41,117 dollars and 15 cents; and on the 18th February, 1814, this account was confirmed in the Orphans’ Court. In August, 1818, they filed a second account, which was referred to auditors: the commission charged, was 102 dollars 37 cents, on 14,108 dollars 36 cents, which was allowed by the auditors, and no exception was taken. In April, 1818, an application was made to the Orphans’ Court, to refer the first account to auditors, which was done. The auditors confirmed the allowance of five per cent, commission, the account, after correcting errors, being reduced to little more than 37000 dollars. Exceptions were filed to their report, that the commission was too high. . The court, after hearing the exceptions, reduced the commission to three per cent.</p> <p>contended, that the commission ought to be restored to the sum fixed by the auditors, namely, five per cent.. No particular sum is established by any law, and courts, in the adjustment of the commission, must be governed by circumstances. If the trusts imposed on the executors by this will are adverted to, five per cent will be thought a moderate compensation. In the first place, all the children of the testator’s sister Mrs. Pax-ton, who are under age, are to be clothed, and completely schooled and educated, at the expense of his estate, by his executors. Secondly, the interest on the bond and mortgage of Mahlon Paxton, is to be recovered by the executors, and paid to Mrs. Paxton, during her life. Thirdly, an annuity of 200 dollars is to be paid to Ker during life. Fourth, an annuity of 100 dollars is to be paid to Mrs. Hutchinson for life. Fifth, ten shares in the bank of Philadelphia, are to be received by the executors, and expended in charity, viz; the clothing of poor children. No additional charge will be made on paying the annuities hereafter. It is, also, to be considered, that the trouble is increased by the residence of two of the executors in Bucks County, and one, in Philadelphia.</p> <p>The compensation to executors cannot be settled by any definite rule. On large sums, where the trouble is not much, the commission should be small; and e contra, it must be increased in proportion as their trouble is increased, and the sum passing through their hands diminished. If there are several executors, and their trouble is unequal, the compensation to each should be different. In this case, Hutchinson is allowed 100 dollars extra, for travelling expenses. As to the annuities to be paid, it is uncertain how long these executors may live, to pay them, and then others will come, who may charge a commission on their payments. These executors have charged commissions on money remaining in their own hands, (about 5000 dollars,) as a fund to perform the trusts: and it is doubtful, whether the commission for paying these annuities, ought not to come out of the fnnd which is to pay them. The inventory contains almost the whole estate, which consisted of bank stock of different kinds, transferred by the executors-to the legatees without further trouble. Mrs. Paxton’s children are all now of age: and S. Walker, the acting executor, who lived in Philadelphia, has removed to a distant part-of New-York, so that he cannot do much more, and some- other person must be employed, who will be entitled to receive compensation. When the Orphans’ Court heard these exceptions, evidence was laid before them respecting the trouble which the executors had had, in administering the estate, and upon this they decided. This court has no evidence laid before them, upon which they can undertake to say, the Orphans’ Court were wrong, and, therefore, will not lightly change the sum they have allowed.</p> <p>Five per cent, has been the usual commission, and was allowed by the auditors, who heard these parties fully, and thought it reasonable. Part of the receipts are rents from old houses which must have required great attention: the sums received were small, and the various disbursements consist of numerous small sums. Five per cent, is a small compensation for the receipt of such rents. After correcting errors, the total commission will be but five per cent, on 37000 dollars. - There would be a peculiar hardship in reducing it now, because the first account was never questioned until after the settlement of the second account in •dugust, 1818, and this account was settled on a supposition, that the first account was closed, and therefore, less commission was charged, than would have been, had it been known that the first account was to be opened, and the commission called in question. The executors have charged travelling expenses, but nothing for the time spent in travelling. It is extremely difficult for executors to prove the exact degree of trouble they have had.</p> <p>Until some law is made, fixing compensation, the best rule is to consider five per cent, as the ordinary allowance, and not to depart from that, ■ either by exceeding o.r falling below it, unless under special circumstances.</p>

IN ERROR. brought this suit originally before Alderman Geyer, and recovered judgment against the defendants, for the sum of 65 dollars and 70 cents. Held: that the defendant had not given sufficient security, and, on motion, dismissed the appeal. contended, that no security was necessary in this case, and, therefore, the appeal was regularly entered. Under the act of 20th March, 1810, sect. 4. Purd.

<p>IN ERROR..</p> <p>This was a writ of error to the Court of Common Pleas of Chester county, where a verdict and judgment were rendered for the defendant. The case was tried before Hallowell, President, who held a Special Court for the trial of causes, in which Dar-lington, President, had been of counsel.</p> <p>It was an action on a promissory note, dated the 1st November, 1817, drawn by the defendant Thomas Walker, in favour of Walker, and George, or order, and by them indorsed to the plaintiffs, for 3000 dollars, at 90 days after date. On the trial, the defendant offered in evidence, the deposition of Enoch Walker, one of the firm of Walker & George, which was objected to by the plaintiff. And the court being of opinion that the deposition was legal evidence for the purpose of showing, that the original note of the 18th June, 1816, and the subsequent notes, including the note in question, were accommodation notes; that the said Enoch Walker was a director of the Bank of Montgomery county; and that the Bank knew of their being accommodation notes, and when they came to that knowledge, overruled the objection, and admitted the deposition; to this opinion, the plaintiffs excepted.</p> <p>The defendant, afterwards, offered Thomas George, one of the firm of Walker & George, but the plaintiffs objected to him. The court, being of opinion that Thomas George, ivas a legal witness, admitted him to be affirmed and examined. To this opinioñ, also, the plaintiffs excepted.</p> <p>Enoch Walker and Thomas George stated, that they carried on the milling business, under the firm of Walker & George, and on the 15th June, 1816, obtained of the defendant, who was a farmer, and the brother of the said E. Walker, his promissory note in their favour, for 3000 dollars, which they indorsed, and had discounted in the Bank of Montgomery county: that the note was drawn in the form of a business note, but was solely for the accommodation of the said Walker & George, no value ever having been received for it by T:' Walker, the defendant. That at the time of making the note, E. Walker and T. George gave to E. Walker, the defendant, their bond, conditioned for the payment of 3000 dollars, in one year, which, they stated, was given to show, that T. Walker had received no part of the money upon the note. The witnesses could not recollect, that any thing was said to the board' of directors, of the note’s being an accommodation note, at the time it was discounted, or that any notice was given to them,- that the said bond had been taken. The note was renewed several times, till at length T. Walker informed E. Walker that he could not renew the note., The cashier informed E. Walker, who had other notes discounted there, that his notes were lying over, and that it was necessary to have new notes, to which he answered, that T Walker declined renewing: that it was not necessary to have a new note from T. Walker, as he was drawer and was sufficient. •The note on which this suit was brought, which was the last of the renewed notes, remained in the bank, Walker & George paying the discount from time .to time, as it became due, until near the 27th January, 1819, when Walker 1\ George failed, and made an assignment. Afew weeks previous to the assignment, theBank requested.® Walker to obtain a new note from T. Walker, so as-to have the -said note renewed according to the order of banking institutions. E. Wal~ ker accordingly applied to T. Walker, but he positively refused, and would not sign a new note. The day before the assignment a deputation from the Bank waited on E. Walker, and inquired of him, why he did not have the note renewed; he assigned as the reason T. Walker’s refusal. At this time T. Walker had notice, that the note was unpaid: but there was no proof that he knew it before. E. Walker, when the first note was given, was a director of the bank, and continued such till the time of his assignment. No part of the bond had ever been paid to T. Walker, nor any demand made upon him.</p> <p>The plaintiff requested the court to charge the jury on several points.</p> <p>1st. That where a note is drawn, in the form of the note upon which this suit is brought, the maker is'not discharged,-by the hol- . der’s giving time, or accepting interest, or part payment, from the indorser, where the holder, or plaintiff, paid value for the note.</p> <p>2d. That in a suit brought on such a note, by the holder against the maker, the maker is not discharged, by the holder’s receiving a part, or interest upon the whole, from the indorser, and giving him time, eveh if, as between the maker and indorser, it was an accommodation note, unless express notice was given the holder of the note, before he paid value for it, that it was an accommodation note.</p> <p>3d. That in a suit brought as above stated in No. 2. the maker is not discharged, if the holder has received a part payment, or a payment of interest from the indorser, and has given him time, even if in fact as between the maker and indorser the said note was an accomodation note, and notice thereof was at any time given to the holder by the maker, provided the holder paid value for said note.</p> <p>The PresideNt of the court ehai’ged the jury, that the material point for the jury to consider was, whether, when the note on which this action was founded became due, or about that time, and when the plaintiffs and Enoch Walker made the arrangement, of which he testified, the plaintiffs knew it to be an accommodation note. If from the evidence, the jury were of opinion, that they did, the plaintiffs then stood in the situation of creditors, having Walker and George for their principal debtors, and Thomas Walker, the defendant, as their surety, and the case must be determined not on the principles relating to negotiable notes, but on those regulating the relation of creditors, principals and sureties. A creditor thus situated, while he remain's passive, retains all his rights, and the surety, whether he be the obligor in a bond, the maker of an accommodation note, or the indorser of a note of business fixed .with demand and- notice,, is liable to the creditor, for any length of time, short of that fixed by legal presumption, or by the act of limitations. But he must be careful how he acts; for if without the knowledge or participation of the surety, he makes any new agreement with the principal debtor, for instance, if he receives part, and gives further time' for the rest, the surety is discharged. The court were, therefore, of opinion, that if the plaintiffs knew, at or about the time the note in question fell due, and when they made the arrangement, of which Enoch Walker testified, that it was an accommodation note, their conduct in making and continuing that arrangement, as detailed in the deposition of Enoch Walker, without the knowledge or consent of the defendant, for a period of near twelve months, and until the failure of Walker & George, operated in point of law, as a discharge of the defendant, and if the' jury were satisfied, from the evidence, that the plaintiffs did then possess such knowledge, let them have derived it from what source they might, their verdict must .be for the defendant. The plaintiffs, thereupon, excepted to the charge of the court.</p> <p>This record involves two questions. First, whether the indorser of the note in question can be a witness to prove the circumstances set up by the defendant as a discharge. Second, whether these circumstances, if duly proved, amount to a discharge of the defendant.</p> <p>1. The party to a negotiable instrument is not a competent witness to prove circumstances that occurred before the making of the note, in order to destroy its legal obligation. In Pennsylvania, the law has been uniform in following the decision in Walton v. Shelly, 1 T. R. as modified by Bent v. Baker, 3 T. R. 35, that a party to a negotiable instrument shall not be a witness to impeach it. In Stille v. Lynch, 2 Ball. 194. in an action by the indorsee against the drawer of &■ promissory note,-the indorser was not allowed to prove that the note was originally given without consideration. In Pleasants v. Pemberton, 2 Dali. 196, the rule was recognized by the Supreme Court, that the party to a negotiable paper shall not be permitted to invalidate it: and this rule was recognised also in Baring v. Shippen, 2 Binn. 165, where the Chief Justice says, the law has since that case been considered as settled. Chase, J. in Wilson v Lenox, 1 Crunch. 201, says, that upon the statute of usury, gaming, and the like, but in no other case, are the drawers, indorsers, &c. competent witnesses: and the cases all show it. The rule adopted by the courts of New York and Massachusetts, is the same with that of Pennsylvania, that a party to a negotiable instrument is incompetent to prove it to have been originally void. 1 Phill. Ev. 35,, 2d ed. note. But a further objection to the indorsers being witnesses is, that they are interested; because, although for the amount of the note, they are liable to either plaintiff or defendant, yet if the Bank had recovered in this suit, the indorsers would have been liable to the defendant, for the costs of this suit. This point was expressly decided in the case of Jones v. Brooke, 4 Taunt. 461. Phill. Ev. 49, 50, where in an action by the indorsee against the acceptor’of a bill of exchange which had been accepted for the accommodation of the drawer, the drawer was held not to be a competent witness for the defendants to prove that the holder took the bill for a usurious consideration, because the drawer would be liable to the acceptor in case of recovery in this suit, not only for the principal sum, but also for all damages sustained by the suit. To the same effect is the case of Goodacre v. Beams, Peake’s N. P. C. 174. cited 1 Phill. Ev. 49, 50. Chitty on Bills, 530.</p> <p>2. The court below erred in charging the jury, that if the Bank, at or about the time the note fell due, and when the arrangments between them and E. Walker were made, knew that the note was an accommodation note, their conduct operated as a discharge of the ■ indorser. We contend, that when the Bank discounted the note, the nature of the note, and the liability of the parties were fixed, and the subsequent events could not affect the responsibility of the indorser. Dingwall v. Dunster, 1 Doug. 247, the holder of a bill of exchange received interest from the drawer for some time after the bill was payable by the acceptor, and suffered several years to elapse without calling on the acceptor, yet it was held that nothing but an express agreement could discharge the acceptor. Ellis v. Galindo, 1 Doug. 250, note. Laxtónv. Peat, 2 Campb. 184, is a Nisi Prius case, where Lord Ellenborodgh decided merely, that if the holder of an accommodation bill receive part payment from the drawer, and give him time, having had notice when he received it, of the circumstances of its original formation, the acceptor is discharged. This case however was doubted by G-ibbs, J. in Kerrison v. Cooke, 3 Campb. 362, and an exception to it is there founded on the circumstance of the acceptor promising to pay when the bill became due, and Laxton v. Peat was expressly overruled by the Court of Common Pleas, in Fentum v. Pocock, 5 Taunt. 192. (1 Serg. & Lowb. 72.) by whom it was held, that the holder taking a cognovit from the drawer, payable by instal-ments, did not discharge the acceptor of a bill; and that, whether" the holder, at the time of taking the bill, knew it was an accommodation bill or not. Carstairs v. Rolleston, 5 Taunt. 551. (1 Serg & Lowb. 184,) confirms this decision. In the Governor and Company of the Bank of Ireland v. Beresford, 6 Dow’s Part„ Cas. 234, a bill of éxchange was accepted for the accommodation of the drawer, which circumstance was known to the holder when he received it, and time was given to the drawer, yet the acceptor was held not to be discharged, and the case of Fentum v, Pe-cock was there cited by Eldon, Chancellor. Nothing discharges the acceptor but payment or release. He also cited Mallet v. Thompson, 5 Esp. N. P. C: 179. Brotan v. Mott, 7 Johns. 361. Chitt. on Bills. 381, 382.</p> <p>1. The court below only decided that the deposition was evidence for certain purposes, and to that opinion the plaintiff excepted. If there were other matters in the deposition which according to the court’s opinion would not be evidence, it was the business of the counsel to move to have them struck out. The question then is, whether the witnesses were incompetent to prove the facts for which they were offered. And the furthest the courts of this country have gone is, to hold that a party to- a negotiable instrument is incompetent to prove it to have been originally void; but he may testify to subsequent facts which do not prove this, as for instance, payment. Seethe cases collected 1 Phill.Evid. 34. In. the present case the indorsers were called to prove circumstances happening after the giving of the note, not the invalidity of it ab origine; they were therefore completely within the established rule. The argument that the indorsers were interested because they would in a suit by the defendant be liable to costs in addition to the amount of principal and interest recovered, is unfounded, because they might allege that the defendant was not bound to stand suit: he took defence on a ground peculiar to himself, in which they were not concerned. At any rate the interest is contingent, because it is uncertain whether the indorser would or would not be compelled to pay the costs, and a contingent interest never incapacitates a witness. 1 Pet. 305, Witlings v. Consequa.</p> <p>2. The indorsers stood in the light of sureties, and the surety is always discharged if time be given to the principal, or the nature of the obligation be changed. 2 V'is. Jr. 540, 544. 7 Johns. 33,2. Cope v. Smith, 8 Serg. & Rawle. 110. There is no ground for distinction between a surety in a bond and a surety on a note or bill of exchange. The character of an indorser, and the conduct of the holder of a note, will be looked into to do justice in particular cases. In Ellis v. Galindo, 1 Doug. 250, the holder received part from the drawer of a bill, and took his written promise for the balance, payable in three months; after three years the acceptor was sued, and it was held that he was discharged. Laxlon v. Peat is an authority in our favour: and it was followed up by Lord El~ ieNboeough, in Collet v. Hay, 3 Campb. 362. In Carstairs v. Rolles ton, 5 Taunt. 551. (1 Serg. & Lowb. 184,) Gibbs, J. says they give no opinion what would be the 'case on a note, where the holders originally had notice that it was given without consideration. The casein 6 Dow, is a Cháneery case, which is not always to be relied on for the law merchant, and that in 5 Esp. N. P. C. 17g, is not to the purpose, because it turns on the construction of a writing. In England there is a distinction between promissory notes and bills of exchange, and much more so in Pennsylvania, where unless in cases provided for by act of assembly, the consideration of a promissory note could be inquired into. The English.cases show, that the courts wished to discourage the practice of accommodation bills, not notes. In Pennsylvania, it was an object to facilitate loans by banks on promissory notes. This appears from the injunctions in the act regulating banks, sect. 9, (Purd. Dig. 59,) requiring the banks to make loans on bond, mortgage, note, &c. The question then is, whether the court will tolerate such conduct in banks as amount to fraud. In this case, though the bank was informed, that the defendant, the drawer,, would not renew it, they yet gave time to the indorsers, by repeated acts, not by actually renewing the note, but by receiving the discount as if there had been a renewal: and this was done for the period of a year, and until the indorsers became bankrupt. When the bank agreed that the money should remain sixty days more in the hands of the indorser, no action could be supported during these sixty days against the drawer, nor could the drawer have paid the money to the bank, and brought his action against the indorsers during that time.- '•</p>

<p>Assumpsit does not lie by one partner against another, unless there be an account actually settled between themselves and a balance struck. It is not sufficient that the balance may be deduced from the partnership books.</p>

IN ERROR. Error to the District Court of the city and county of Philadelphia. John. Turner, Jr., Samuel Humphreys, and JBernard Fitzsimmons,' brought this action of trespass vi et armis, against Caleb North, Thomas Elliot, Henry Engles, and John Graham, for taking and carrying away 300 barrels of tar, 200 barrels of rosin, and 50 barrels of turpentine, the property of the plaintiffs: to which the defendants pleaded not guilty.

<p>The compensation to the Auditors of the county of Philadelphia, for settling the accounts of the guardians of the poor of the city and districts, is to be paid out of the county treasury.</p>

IN ERROR. Error to the District Court for the city.and county of Philadelphia. , — —1 Howell Tatem, the plaintiff below, brought this action of debt against Jinn Evans, administratrix of John B.… Held: that it was issuable and triable by jury, whether there was an ordér of chancery pleaded by the defendant, or not; for their orders there are only in paper, and are not of record, to be tried by the record, but only by jury.

<p>The debtor is not exempted from the payment of interest by the continued absence of the creditor at a distance from the state, and his not being heard of for many years. Therefore, where bonds were given in Northampton County for a portion of a distributive share, and the obligee was then absent, and the last that was heard of him afterwards was, that he was at Natchez in 1806, and administration was taken out of his estate in 1818, on'the presumption of his death; it was held, that the ob.ligor was bound to pay interest on the bond.</p>

IN ERROR. Error to the Court of Common Pleas of Chester eounty, in an ejectment brought by John Jourdan, the plaintiff below, against Hugh Jourdan, the defendant below, and plaintiff in error, tried… Held: that no particular form of words is necessary to make the acknowledgment good: the words of the act need not be' used if its directions are substantially complied with. MiIntire,s lessee v. Ward, 5 Binn. 301.

<p>If the sheriff return to a levari facias struct off for a certain sum, and sheriff could not mate a title, therefore remains unsold, the plaintiff may issue a new execution.</p> <p>The privilege of a stay of execution under the appraisement act of 28tlvlííZí’e/i, 1820, expired with that act, and existed afterwards, in relation to executions issued while that act was in force, only as modified by the act of the 2fth March, 1821. If the legislature gives an- indulgence of a stay of execution to a debtor, it may af-terwards modify or withdraw it.</p> <p>An onjission in a levari facias of the command to levy the debt, is a clerical mistake, • and may be amended after error brought, by the court above.</p>

<p>IF a servant, in the course of delivering out goo.ds to customers, make memoranda, and the same night, or next day, entries are made by the master, in books, from these memoranda, such books are books of original entries, and are admissible, accompanied with the master’s oath, as evidence to charge a customer.</p>

<p>The residence of a.plaintiff within the State of Wew-YorJc, at the time when the debt accrued, and since, does not bring him within the proviso of the act of limitations in favour of persons beyond seas. ■ -</p> <p>A party entitled to the benefit of the proviso, loses his privilege from the time he comes into the State: and a replication to a plea of the act of limitations, not stating that th e plaintiff had not been in the State within the time allowed by the act, is bad on demurrer.</p>

IN ERROR. Error to the District Court for the city and county of Philadelphia. _ . _ Samuel R. Wood, the plaintiff below, brought this action against John Kline, the defendant below, in assumpsit .on the warranty of the soundness of a horse.

<p>If a bond and warrant of attorney are given accompanying amortgage, a sale'of the land under a fieri facias and venditioni exponas issued on the judgment entered up under the vi arrant, avoids a lease made by the mortgagor,.after the mortgage but before the entry of the judgment on the warrant. . •</p>

<p>The court will not, on motion to set aside a Fi, Fa., inquire into the title of a third person, who claims the lands levied on, but will leave him to his ejectment.</p> <p>Nor will the court, in such case, inquire into the existence of a lien on the land; though they would apply the. proceeds to them if valid,. when the money is brought into court by the sheriff.</p> <p>If a subsequent judgment creditor buy in a prior mortgage and judgment, and under the latter, levy on lands of the debtor, not included in the mortgage, with a view to the payment of his own judgment out of the mortgaged property, the court will' not.interfere, on motion, to relieve one claiming the land levied on, under a voluntary conveyance, by directing the debtor to proceed against the mortgaged premises: though, it seems, they would in favour of a purchaser for a valuable consideration.</p>

CASE STATED. Covenant by James Lyle, Joseph R. Ingersoll, Edward Ellice, and Thomas B. Barclay, assignees of Francis L. O’Bierne and Rebecca', his wife, James Lyle, John B. Newman and William H Tod, assignees of Henry Beckett and Mary, his wife.

IN ERROR. Error to the Common Pleas of Lancaster county. Held: that if a writ issue against two, and only one be taken, and the suit proceed against him alone, the other is not excluded from being a witness on the ground that he is a party to the suit.

IN ERROR: Error to the Court of Common Pleas of Lancaster county. Assumpsit in the court below by John Wieidner, the plaintiff, against John Schnieigart. Held: that the holder of a check is prima facie to be deemed the rightful owner of it, and he need not prove a consideration, except where circumstances of suspicion appear. Possession of an order to pay money is prima facie evidence of payment, though it ^otherwise of an order to deliver goods. Taylor's N. Car. Rep. 40.

<p>On affirmance of a judgment in this court after a writ of error, interest is to be charged on the judgment below till affirmance, and then the aggregate is to bear interest.</p> <p>But the plaintiff cannot in such case, charge interest on the costs of suit, until he pays them j though, on payment, he may charge interest from that time.</p>

<p>The sheriff is liable for an escape, where he lias returned non est inventus to a ca-pias ad satisfaciendum, which had been delivered to him, if, prior to the return day, his deputy had the defendant in custody under another capias ad satisfacien-dum, and discharged him; though it do not appear that the sheriff knew of the latter writ, or that the deputy knew of the former.</p> <p>The declarations of the deputy sheriff respecting the execution of a writ, made after the return day, but while the writ is in his hands, are evidence against the sheriff.</p>

IN ERROR. Error to the District Court for the city and county oí Lancaster, in a suit brought by Leonard Jluwerter, against John Mathiot, sheriff of that county, to recover certain monies in his hands arising out of a sheriff’s sale made by him of the property of William Lytle. On the trial of the cause in the court below, a verdict was given for the plaintiff, subject to the opinion of the court on a case stated in the nature of a special verdict.

IN ERROR. Error to the Court of Common Pleas of Lancaster county. The action in the court below was a scire facias on a recogni-sance of bail in error, brought by Thomas Hunt and Israel Fisher, plaintiffs below, against Henry Share. By the evidence filed with the opinion of the court, it appeared that Hunt and Fisher bad recovered judgment in the same court, against Vanlear, on an award of arbitrators, on which a vuit of error from the Supreme Court was taken out.

<p>Where judgment below is revised, and a venire de novo awarded, if, on another trial, the opinion of this court is read to the jury by one party, the other may read the charge of the court below, to explain the opinion, though notas evidence of law or fact.</p> <p>If a legacy be payable in instalments, and the date of the last instalment expire before the testator’s death, it is to be considered as a legacy payable generally, and carries interest from one year after the testator’s death.</p> <p>Where the defendant pleads payment to a bond, with leave to give want of consideration and special matters in evidence, he can only give such matters in evidence as show that the plaintiff has no right to recover; but when he pleads payment with leave to give defalcation in evidence, he may give in evidence matter entitling him to recover against the plaintiff' under the defalcation act.</p> <p>Where the defendant paid money to the plaintiff, which both parties thought the plaintiff' was entitled to, but it afterwards turned out that the plaintiff was not entitled to it, held that interest ought not to be paid by the plaintiff till the defendant explained the mistake and demanded repayment.</p> <p>Where, in this state, a legacy is granted to. one, and afterwards over on the happening of a contingent event, the executor ought not to pay to the first legatee without security, if required to take security by the legatees over; and on action brought by the first legatee, the court would require security before execution issued.</p> <p>But if such payment be made with the consent of all parties concerned, the executors would not be liable to the legatees over.</p> <p>If a guardian pay to his ward a legacy bequeathed to him, then to others on a contingency, if that contingency happen, the guardian cannot recover it back as trustee for the legatees over; though the legatees themselves might recover it.</p>

<p>A former recovery in an action for money had and received against an executor by the widow is only prima facie evidence that the whole amount with which the executor then charged himself in the settlement of his accounts, was recovered: the plaintiff may in another action recover monies received since the bringing of the former suit though contained in the account, if they were not before recovered.</p> <p>In an action by the widow for her share of the surplus monies arising from the sale of a tract of land ordered by the testator to be sold and undisposed of by will, evidence is not admissible of an action of dower brought by her to recover her dower in another tract belonging to the testator, which is the subject of a different devise.</p> <p>When a testator orders land to be sold and certain legacies to be paid out of the proceeds, the surplus money after the payment of the legacies does not go to the executor, or to the next of kin, as an undisposed of residue of personal es-' tate, but results to tlje heir at law.</p> <p>If the widow in such case bring an action of dower and count therein, this is such an election as would bar her from claiming a share of the money if it were an un--disposed of residue of personal estate.</p>

<p>A devise of a lot with the houses upon it to A. as his own property, and of certain specific legacies of which he was not to be master till his full age, and in case he died before lawful age, or after such age, without issue, then all and singular the above legacies, or what shall be left thereof, to be sold and divided among other children, carries a fee simple in the lot and house.</p> <p>A deed accompanied with a written agreement between the parties of the same date, reciting that the deed was made for a certain sum due from the grantor to the grantee, or for securing the payment thereof, and stipulating that the grantee will not sell or mortgage the property for three years and three’months, and will then deliver up the deed to the grantor if the money is repaid by instalments within that time, and providing that if either party die, or the premises must be sold within that time, and more than the sum due, and interest are obtained, the surplus shall go lo the. grantor, but if less, the grantor shall supply the deficiency— is a mortgage</p> <p>Ifj howcvi-r, the money is equal to the value of the premises, and the time fixed elapses without pavment, and the grantee brings ejectment, on which a judgment is entered by agreement, stipulating, that in case of repayment by a certain day, the property shall remain in the defendant, otherwise a writ of habere facias pos-sessionem to issue, and the rents of the interval tó be paid to the plaintiff and default of payment being- made a writ issue, on which possession is delivered to the grantee, who retains it and makes improvements, the grantor acquiescing by silence, and becoming insolvent and making no return of the premises as his property, the grantee is entitled to the premises.</p> <p>But parol evidence is admissible on behalf of the plaintiff suing for the use of his creditors, to show a prolongation of the time of redemption, and to rebut the presumption of acquiescence, by the declarations of the grantee, that he intended after a sale to pay the surplus to the creditors or children of the grantor.</p> <p>Laying a consideration executed in assumpsit, without previous request, is bad on demurrer, but is cured by verdict.</p> <p>An insolvent debtor, who has assigned his property, cannot sue for a cause of action existing at the time of the assignment, in his own name, though empowered by 1ns creditors, and though the assignees have not acted.</p> <p>On a mortgage of land, with authority to the mortgagee to sell after a certain time, and to pay the surplus, if any, after satisfying the debt, to the mortgagor, if there is no covenant or special agreement to pay, indebitatus assumpsit lies for money had and received, for a surplus arising from sale.</p> <p>A trustee of an insolvent debtor, who releases all his claims as creditor to the insolvent, is a good witness on his behalf in a suit in the insolvent’s name, for the use of his creditors.</p> <p>If the question whether nfo'rtgage or not depends solely on writings, parol evidence is inadmissible, but if it be admitted, and the question depends partly on that evidence, it should be left to the jury whether it was a mortgage or not.</p>